Third Circuit

The Third Circuit vacated Josey’s sentence for failing to update his sex-offender registration after moving interstate, holding that the district court erred in counting defendant’s prior sentences that were imposed over ten years prior to the “commencement of the instant offense.” The court held that the district court could not rely on the commentary to the Guidelines to begin counting the 10-year period from the date of the defendant’s relevant conduct, here a separate sentence for failure to register under state law, and instead had to count the 10-year period only from the specific offense of conviction.

The Third Circuit affirmed revocation of a defendant’s supervised release and a 48-month sentence where the district court credited hearsay statements from the alleged stabbing victim. The Court held the statements were sufficiently reliable, and the government showed good cause for the witness’s absence.

The Third Circuit affirmed the denial of a sentence reduction under § 3582(c)(2) based on the retroactive amendment under U.S.S.G. § 4C1.1. The Court held that § 6A1.3(a)’s notice-and-opportunity protections apply to § 3582(c)(2) proceedings, but there was no due-process violation because the district court relied on information used at the original sentencing, not “new information.”

The Third Circuit held that, in cases where a defendant is sentenced under the prior version of 924(c) but has their sentence vacated on constitutional grounds, the amended version of 924(c) is in effect at any later resentencing.

The Third Circuit vacated a defendant’s sentence after holding the district court improperly enhanced the defendant’s offense level under the Guidelines based on the defendant’s prior conviction for conspiracy to commit second degree murder. The plain text of the relevant Guidelines provision does not include “conspiracy” under the definition of “crime of violence,” and courts may not rely on commentary to increase a defendant’s Guidelines range when the commentary goes beyond the plain text of the Guidelines.

The Third Circuit reversed a defendant’s conviction for distributing drugs within 1,000 feet of a playground under 21 USC 841, where the trial court did not instruct the jury in how to define a “playground” as defined under 21 USC 861(e)(1). The Court concluded that whether the facility is a playground is an element of the offense that must be proven beyond a reasonable doubt, joining the Fourth, Fifth, Sixth, Ninth, and Eleventh Circuits.

After bouncing between the Third Circuit and the Supreme Court, including after an en banc decision, the Third Circuit affirmed the defendant’s conviction but remanded for resentencing, reaffirming its holding that the defendant was not a career offender based on his prior state law convictions, since “the plain language of the guidelines does not include inchoate “attempt” drug crimes like the one that was used as one of Nasir’s predicate offenses.”

The Third Circuit held that the district court had plainly erred in imposing a condition of supervised release requiring the defendant to register as a sex offender under SORNA where the defendant did not have a conviction for a “sex offense” under SORNA’s definitions. The defendant was convicted of depriving the civil rights of individuals under color of law by using his position as a police officer to coerce women to engage in sexual conduct with him. The Court also held that since he was not notified of SORNA’s requirements prior to his sentencing, his appellate waiver was not entered into knowingly and voluntarily.

Joining the Fourth, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits, the Third Circuit held that a conviction for Hobbs Act robbery is not a prior conviction for a “crime of violence” under the “Career Offender” provisions of the Guidelines.

Sitting en banc, the Third Circuit held that inchoate offenses are not included in the definition of “controlled substance offenses” under the career offender guidelines because commentary to the Guidelines is not binding when it is inconsistent with or broader than the text of the Guidelines. The Court also held that a court reviewing a defendant’s Rehaif challenge under plain error review is limited to considering the record presented at trial, not the whole record, and a new trial is warranted where there is no evidence presented to a jury regarding the defendant’s knowledge of his prior felony.